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ELRCAllowedNot stated in the judgment· [2015] KEELRC 681 (KLR)

Patrick Makokha Maina v Garda Security Services Limited [2015] KEELRC 681 (KLR)

Employment and Labour Relations Court
31 July 2015
NMNzioki wa Makau
942 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan security guard fired for demanding leave won full terminal dues, including 12 months' salary compensation, when his employer skipped the case.

What this practically means

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Executive summary

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The Claimant, formerly employed by the Respondent as a security guard from 4th February 2008 and promoted to supervisor on 1st May 2008, sued for terminal dues after his services were terminated in February 2014 following his demand to take leave. The suit, filed on 27th October 2014, was undefended: the Respondent was served but neither entered appearance nor filed a defence, and the matter proceeded to formal proof. The Claimant testified that he earned Kshs. 10,800/- monthly with an unlawful Kshs. 3,800/- deduction for uniform; that he was told to proceed on leave and resume on 2nd May 2014, only to be informed on resumption that his employment had ended; and that he was never given a dismissal letter despite repeated attempts. The court found the dismissal manifestly unfair, noting the illegal uniform deduction and the denial of notice and leave pay. Applying Sections 35, 49(4) and 50 of the Employment Act, the court awarded payment in lieu of notice of Kshs. 10,800/-, leave pay of Kshs. 30,624.99, house allowance of Kshs. 136,080/-, and 12 months' compensation of Kshs. 129,600/-, plus a certificate of service and costs assessed at Kshs. 15,000/-. Judgment was entered in full for the Claimant and delivered at Nairobi on 31st July 2015 by Nzioki wa Makau J.

Key legal issues

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01

Unfair termination of employment

Holding

The dismissal after the Claimant demanded his leave entitlement was manifestly unfair, warranting 12 months' compensation

Reasoning

The Claimant was told to proceed on leave and return on 2nd May 2014, but on resuming duty was informed through the manager that his services had been terminated on 2nd February 2014. He was denied a dismissal letter, no notice was given, and no reasons were advanced. In an undefended cause, the unchallenged testimony established unfair termination, attracting maximum compensation under Section 49(4) of the Employment Act.

p. 3
02

Entitlement to house allowance and leave pay

Holding

The Claimant was awarded house allowance of Kshs. 136,080/- and leave pay of Kshs. 30,624.99

Reasoning

Section 35 of the Employment Act sets house allowance at a minimum of 15% of basic pay. The Claimant was never paid leave pay despite being denied leave for six years, and the Respondent, though served, filed no defence to contradict the claim. The court quantified house allowance for the duration of employment and granted the claimed leave pay.

p. 3

Legal principles established

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  • House allowance should at minimum be 15% of basic pay under Section 35 of the Employment Act
  • Unexplained deductions from an employee's salary are manifestly illegal
  • An employee unfairly terminated is entitled to fair compensation under Sections 49(4) and 50 of the Employment Act

Court orders

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  1. 1.Payment in lieu of notice Kshs. 10,800/-
  2. 2.Leave pay Kshs. 30,624.99
  3. 3.House allowance Kshs. 136,080/-
  4. 4.12 months compensation Kshs. 129,600/-
  5. 5.Certificate of service
  6. 6.Costs of the suit assessed at Kshs. 15,000/-

Authorities

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Legislation

  • Employment ActSection 35
  • Employment ActSection 49(4)
  • Employment ActSection 50
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (Sections 35, 49(4) and 50 applied)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Patrick Makokha Maina v Garda Security Services Limited [2015] KEELRC 681 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/681/eng@2015-07-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.